During the first State of the Union address with both houses of Congress present since the pandemic began, President Biden made brief references to his ambitious workplace law agenda, touching on several labor and employment topics that he has prioritized over the past year.

But given the Democrat’s razor-thin Senate majority, the chilling effect of several moderate Democratic senators who have blunted several of his grander plans, and the possible evaporation of congressional control with the upcoming midterm elections – not to mention the crises at home and abroad that will occupy his attention – how realistic are these proposals?

This Insight will review the four most significant labor and employment initiatives raised by the president during the State of the Union (SOTU) address, along with our predictions assessing the likelihood of their coming to fruition.

Pay Equity and 'Paycheck Fairness'

The president called on Congress to pass the Paycheck Fairness Act, which would require the EEOC to draft regulations that would require employers to produce compensation data to the government.

Presumably this would lead to a scenario similar to the infamous “EEO-1 Component 2 reports” we saw several years ago before they were axed by the Trump administration. Further, the Act would amend federal wage and hour law to (1) restrict the use of the “factor other than sex” defense to wage discrimination claims to “bona fide, job-related factors,” (2) enhance non-retaliation prohibitions, (3) make it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee’s wages, and (4) increase civil penalties for violations of equal pay provisions.

Prediction: The bill was narrowly passed by the House in April 2021 and reintroduced in the Senate this past summer – co-sponsored by all 50 Democratic senators – but it was blocked by a group of 49 Republicans in June 2021. It still will not be able to overcome Republican opposition in the Senate and garner the 60 votes needed to overcome their filibuster in 2022. We’ll continue to see more activity at the state and local level, but there is not sufficient appetite among Republicans in D.C. to pass sweeping pay equity legislation.

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